ADM. APPEAL DOCKET NO. CK - 410026 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE APPEAL
APPEAL OF DOCKET NO.
CK - 410026 RO
:
RENT ADMINISTRATOR'S
DOCKET NO.
BL - 410210 - S
WEST BANK REALTY CO.
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On November 10, 1988, the above-named petitioner-owner filed
an Administrative Appeal against an order issued on October 19,
1988, by the Rent Administrator, 92-31 Union Hall Street, Jamaica,
New York, concerning the housing accommodations known as 82 West
105th Street, New York, N.Y., Apt. 3-N.
The issue herein is whether the Rent Administrator properly
reduced the rent of the subject apartment.
The Rent Administrator's order, appealed herein, reduced the
rent of the subject apartment to the level in effect prior to the
last guideline increase based upon the owner's failure to provide
certain services. A DHCR inspection held on September 15, 1988,
found that:
1. Bathroom toilet flapper does not fall in properly.
Water does not come up to its level.
2. Bathroom floor tiles are cracked.
3. Vermin infestation in apartment.
4. Livingroom floor boards are loose and uneven.
5. Dining room closet walls and ceilings are cracked
and peeling paint and plaster.
Kitchen ceiling has a hole around riser and below
kitchen wall. Foyer closet ceiling and wall --
peeling paint and plaster and cracks.
ADM. APPEAL DOCKET NO. CK - 410026 RO
The same inspection report, however, found that the owner had
restored ten other services.
On appeal, the owner states, in pertinent part, that the
tenant never complained of a defective toilet flapper, defective
conditions in the dining - room closet, or the hole around the
riser and below the kitchen wall; that the owner documented the
tenant's refusal to provide access and after the Division's "no
access" inspection on September 15, 1988 there was insufficient
time to complete the necessary repairs before the order was issued;
that the results of a court-ordered HPD inspection on August 16,
1988 revealed no defective conditions; that the owner had already
completed substantial repair work in the subject apartment; and
that the tenant agreed not to challenge the rent of the subject
apartment as part of a settlement agreement in a holdover action in
New York Civil Court. The owner also asserts that upon receipt of
the Administrator's order, all remaining repairs were promptly
completed.
After a careful consideration of the entire evidence of record
the Commissioner is of the opinion that the administrative appeal
should be denied.
Section 2523.4 of the Rent Stabilization Code provides, in
pertinent part, that a tenant may apply to the DHCR for a reduction
of the legal regulated rent to the level in effect prior to the
most recent guidelines adjustment, and the DHCR shall so reduce the
rent for the period for which it is found that the owner has failed
to maintain required services. Required services are defined in
section 2520.6(r) to include repairs and maintenance.
The Commissioner rejects the owner's argument that it was not
afforded sufficient notice of the conditions for which the rent was
reduced. The record clearly shows that the tenant presented a
broad-based menu of specific service complaints below including
unworkmanlike repairs made to the toilet and peeling paint and
plaster throughout the apartment, which adequately covered the
deficient service conditions which were the subject of the Rent
Administrator's reduction order. The tenant's complaint was served
on the owner on January 21, 1988 and the inspection eight months
later revealed that many conditions remained unrepaired. Moreover,
the owner concedes that it was present at the inspection and
therefore had an opportunity to view the same conditions as the
inspector. It is also noted that an inspection by the Division's
Enforcement Unit on April 22, 1988 revealed many of the same
conditions and these were reported to the owner.
The Commissioner also finds that the owner's contention that
it was denied access to the subject apartment to be without merit.
ADM. APPEAL DOCKET NO. CK - 410026 RO
The record shows that a number of repairs, requiring apartment
access, were corrected by the owner in the subject apartment after
the tenant's complaint was served on the owner. There is also no
evidence in the record of attempts by the owner to schedule
appointments for repairs by means of letters sent to the tenant by
regular and certified mail. There is only a copy of one letter
sent to the tenant's attorney describing an incident when the
tenant purportedly denied access. The Commissioner notes that the
owner is required to correct all service deficiencies complained of
by the tenant.
Contrary to the owner's allegations on appeal, the Division is
not bound by the inspection results of another agency (HPD) and
clearly has the right to conduct its own investigations and
inspections.
The Commissioner has considered petitioner's claim on appeal
that the tenant was precluded from initiating this proceeding by
virtue of a settlement agreement executed between the parties in
Civil Court and rejects same. A review of the settlement
agreement, dated October 19, 1987, shows that the tenant merely
agreed to accept the legal rent and not to challenge its
computation. This can not be interpreted to mean that the tenant
had agreed to waive her rights to object to the owner's failure to
provide required services.
The Commissioner finds, therefore, that the Rent Administrator
properly based his determination on the entire record, including
the results of the on-site physical inspection held on September
15, 1988 and that pursuant to Section 2523.4(a) of the Code, the
Rent Administrator was mandated to reduce the rent upon determining
that the owner had failed to maintain services.
Accordingly, the Commissioner finds that the Rent
Administrator properly reduced the rent of the subject apartment.
It is also noted that contrary to the owner's allegation that
all repairs were promptly attended to after issuance of the order,
the Division's records indicate that the owner's five rent
restoration applications have been denied.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is,
denied, and the Administrator's order be, and the same hereby is,
affirmed.
ADM. APPEAL DOCKET NO. CK - 410026 RO
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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